Doctors decided they needed to implant a pacemaker in Yaeko Otani, age 81. Had the surgery been successful, she would have had a life expectancy of another eight years. Tragically, surgeon David Broudy accidentally punctured her aorta during the surgery, and she died without ever regaining consciousness.

Ms. Otani’s two children and her estate filed suit against Dr. Broudy for wrongful death. After hearing the evidence Judge Sharon Armstrong entered a verdict in favor of the two children for $125,000 each, and in favor of the estate for another $450,000 for “loss of enjoyment of life.” In addition, Dr. Broudy was ordered to pay over $45,000 in medical and funeral costs.

Although he did not challenge the amounts awarded to Ms. Otani’s children, or the medical and funeral expenses, Dr. Broudy did appeal the $450,000 judgment in favor of the estate. His attorneys argued that a “wrongful death” action can not be brought on behalf of an estate.

Under the “common law” principles inherited by U.S. states from their legal predecessors, the claim of damages for wrongful death did not exist. Personal injury claims usually lapsed with the death of the injured party, and by definition the primary victim of a wrongful death could not survive the injury—so the claim was viewed as dying with the victim.

To remedy what was seen as an injustice, state legislatures individually adopted laws that allow survivors to bring a lawsuit for wrongful death of a parent, child or spouse. Most states permit the action to be brought by the estate of the victim, but make clear that the claim belongs to the survivors. Philosophically, the wrongful death action seeks compensation not for the loss of one’s life but for the loss of companionship, support and assistance of a loved one.

That, argued Dr. Broudy, was why Ms. Otani’s estate should not be entitled to receive any money for the loss of her life. While her children could bring their own claims, and the estate could seek reimbursement of medical and funeral expenses, Ms. Otani’s estate had no cause of action, argued Dr. Broudy.

The Washington State Court of Appeals agreed. Since Ms. Otani died without ever regaining consciousness, and because there was no evidence that she suffered any pain as a result of Dr. Broudy’s negligence, her estate was not entitled to any additional damages. A state law which allowed some legal actions to survive the victim’s death did not create any new cause of action, ruled the judges. Estate of Otani v. Broudy, December 16, 2002.